A Call for a Broader Perspective in Employment Law

As presented, in the case of British Home Stores v Burchell [1978] IRLR 379, three assessment tests were laid down, determining whether the dismissal was fair or otherwise. The assessment points are mentioned below;

a. Whether it was truly believed by the employer that the employee was guilty on his part of his misconduct.

b. Whether the employer had appropriate or reasonable grounds as to dismiss the employee.

c. Whether there was a proper investigation held in order to conclude whether the employee was wrong on his part.

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It is signified that the above test assessment laid down in the Burchell test focuses on a narrow range and provides too many unnecessary information and the court needs to stop assessing test in other cases based on Burchell test to throw light in a wider sense. In, Reilly v Sandwell Metropolitan Borough Council [2018] UKSC 16, Lady Hale observed that to calculate the assessment through Burchell test, was to limiting the actual assessment and also contended that, the injury provided in section 98(4) does not comply well or fit in the three points of assessment. In, Orr v. Milton Keyness Council (2011) ICR 704, A weak point of the Burchell test is that the alleged allegation against an employee may be manufactured and fabricated. In, Royal Mail ltd. V. Juthi (2018) IRLR 251, Underhill LJ states that the Burchell test did not justify the true assessment where in the above stated case where an employee with no managerial post induces his employee by producing false evidence against his colleague, where the employer innocently dismisses the other employee. In another case, where Burchell faces a loophole is Linford cash and Carry ltd. v. Thomson and others 1989 IRLR 235 where a complaint was made anonymously on whose basis dismissal was made.

I would agree with my fellow speaker that the Burchell test limits the concept of assessment to an extent where an unfair dismissal is stated fair and fair dismissal is stated unfair. I have cited cases as above to infer with my statement and further I wish to state a few more in regard of the same. In, Orr v. Milton Keyness Council, (2011) ICR 704, apart from the contention that the allegations may be fabricated, it was also noted that the employee was not presented at all and was not given fair chance of defending. In Turner v. East Midlands Trains ltd. (2012) EWCA civ 1470, it was held that the Burchell test is not Wednesbury rational at all.

However, the Burchell test focuses light more on the reasonableness and its range of band produced by the employer more than that of an employee, where arbitrary behaviour and decisions might not be supported by the test of reasonableness referencing, Securicor Ltd v Smith [1989] IRLR 356 (CA). The widening of the reasonability test must be aimed at increasing and it is possible through an amendment only. In my opinion, the precedent ruled out to British Home Stores Ltd v Burchell [1978] ICR 303 favours more aiming at the employers must not be applied in every stringent case and look beyond as well.

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BIBLIOGRAPHY

WEBSITES

1. doihaveacase.co.uk, Tom Street, September 16, 2013, https://www.doihaveacase.co.uk/the-burchell-test/.

2. No5.com, Anthony Korn, 31st May 2018, https://www.no5.com/media/publications/is-the-test-for-unfair-dismissal-in-conduct-cases-going-to-change/.

3. No5.com, Anthony Korn, 31st 2018, https://www.no5.com/media/publications/is-the-test-for-unfair-dismissal-in-conduct-cases-going-to-change/.

4. Employmentcasesupdate.co.uk, 3rd February 2011, https://www.employmentcasesupdate.co.uk/site.aspx?i=ed7840.

5. Tribunalclaim.com, Tom street, 1st February, 2016, https://www.tribunalclaim.com/gross-misconduct-burchell-test/.

6. Swarb.co.uk, 3rd December, 2020, https://swarb.co.uk/securicor-ltd-v-smith-ca-1989/.

ACTS INCLUDED

1. Employment Tribunal Act 1996

CASES REFFERED

1. Associated Provincial Picture Houses Ltd v Wednesbury Corp, 1 KB 223,, EWCA Civ

2. British Home Stores v Burchell [1978] IRLR 379

3. Reilly v Sandwell Metropolitan Borough Council [2018] UKSC 16,

4. Orr v. Milton Keyness Council (2011) ICR 704

5. Royal Mail ltd. V. Juthi (2018) IRLR 251

6. Linford cash and Carry ltd. v. Thomson and others 1989 IRLR 235

7. Securicor Ltd v Smith [1989] IRLR 356 (CA) & viii. Monie v Coral Racing Ltd 1981 ICR 109 CA.


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